The seemingly certain approval of Initiative Measure No. 31 for placement on the 2011 general election ballot in Mississippi would put to a vote changes in the state’s eminent domain rights – and revisions in more than 40 other states suggest they would pass.
Backed strongly by the powerful and widespread Mississippi Farm Bureau Federation, the initiative is similar to many others that have moved to votes in states across the country after a U.S. Supreme Court decision upheld New London, Conn.’s right to eminent domain for private sector redevelopment of condemned property. The condemned property was not redeveloped and promised public benefits did not materialize.
Our Legislature overwhelmingly passed more restrictive eminent domain reform in 2009, but it was vetoed by conservative Republican Gov. Haley Barbour, who said it would cripple Mississippi’s ability to obtain land for jobs-producing economic development:
“I am vetoing House Bill 803 because it would do more damage to job creation and economic development than any government action since Mississippi rightfully began trying to balance agriculture with industry in 1935.”
He continued, “If House Bill 803 were to become law, Mississippi would enact a prohibition against the use of eminent domain for job creation or economic development projects under MEIA [the state Major Economic Impact Act]. Every company looking to site a new facility or significantly add to an existing facility here will know about this prohibition. And if they didn’t, every state competing against Mississippi would tell them over and over about the prohibition; because every other state knows that the use of eminent domain is often required to provide good title to the site for the facility or the critical infrastructure needed to serve this job-creating project. As a reminder, eminent domain was used to allow Nissan, Toyota, ATK, PACCAR, Stennis Space Center and the Tennessee-Tombigbee Waterway to exist in Mississippi. Eminent domain would likely be needed to secure title to many other MEIA economic development sites in the future, and experienced site selectors, whether corporate or under contract, know it.”
Barbour suggested alternatives, but the House overrode his veto; the Senate sustained it.
The Journal agreed with Barbour.
Is the new proposal better? Does it close some of the gaps and liabilities Barbour saw in the 2009 legislation? Would it place Mississippi at a disadvantage particularly with its chief competitors in the southeast? How have other states changed their eminent domain laws, and are they in parallel with what Ballot Initiative 31 would require?
This is the question and summary:
• “Ballot Title: Should government be prohibited from taking private property by eminent domain and then transferring it to other persons?
• “Ballot Summary: Initiative #31 would amend the Mississippi Constitution to prohibit state and local government from taking private property by eminent domain and then conveying it to other persons or private businesses for a period of 10 years after acquisition. Exceptions from the prohibition include drainage and levee facilities, roads, bridges, ports, airports, common carriers, and utilities. The prohibition would not apply in certain situations, including public nuisance, structures unfit for human habitation, or abandoned property.”
The summary was prepared by the attorney general’s staff as required in Mississippi law for all ballot initiatives.
Barbour can’t veto an initiative proposed by the secretary of state for a vote, but he could propose an alternative he thinks better, and it would also go on the ballot if approved by the Legislature. He also could campaign against an initiative he opposes, and he will still be governor during the 2011 ballot debate.
The constitutional scholars, economic developers (state and private-sector) and civic leaders should weigh in on Initiative 31, debating its implications, strengths and flaws – and offer explanations and advice for voters from their points of view. Nobody opposes private property rights, and no one opposes economic development. Eminent domain, rooted in the Fifth Amendment and 14th Amendments to the U.S. Constitution, has been seen as a major economic development tool. Would this initiative, if adopted, damage prospects?
After full debate, we can all make an informed decision.
NEMS Daily Journal